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The 2018 annual report by the Ombudsman for Short-term Insurance (Osti) shared some useful insurance principles that could avert disaster during a claim or claim dispute.

Your short-term insurance policy includes time limits for lodging a claim and for disputing a claim decision. You must make sure you are aware of the time restrictions and the consequences of non-compliance.

The first time-sensitive issue is the requirement to report an insured loss as soon as possible after it occurs, but no later than 30 days after. You risk forfeiting your right to claim against your insurer if you fail to notify it timeously of the loss.

The second “clock” starts ticking if you intend lodging a dispute over your insurer’s claim decision. Your policy allows a minimum of 90 days after you are notified of your insurer’s claim decision during which you may lodge an internal dispute with the insurer. An additional 180 days is allowed for you to escalate the dispute to other dispute resolution bodies such as Osti.

If you still fail to act, your insurer can rely on the time-barring provisions in your policy to prevent your dispute from being heard.

Peter Nkhuna, a senior assistant ombudsman, warns that the Osti may not be able to assist you if your insurer institutes the time-barring clause - even if it takes a dim view of how your insurer handled the matter.

The onus of proof in claims and disputes is guided by civil law.

“Our courts have repeatedly said that he who alleges must prove,” writes Thasnim Dawood, a senior assistant ombudsman.

As an insured you will face one of two situations. Where you experience a loss, the onus rests on you to prove that the insurer is liable under your policy. If your house is damaged and you wish to claim under subsidence cover, you must provide evidence that the damage was caused by subsidence, perhaps in the form of a structural engineer’s report. The burden then shifts to the insurer to refute that evidence if it wishes.

Where you and your insurer agree that the loss event is covered it is left to the insurer to enforce any exclusions.

“In the case of a motor vehicle accident, the insurer may wish to avoid liability because of an exclusion or exception in the policy, for example, driving under the influence,” writes Dawood.

The onus lies with the insurer to prove that the exclusion it is relying on is factual - if the insurer rejects the claim based on an exclusion, it must prove its case with evidence.

Dawood urges policyholders to have the evidence in support of their position before approaching Osti. The scheme cannot gather evidence on behalf of any of the parties, nor liaise with third parties who are not party to the dispute.

“A decision cannot be made in favour of a party without the party proving its case on a balance of probabilities, by providing substantial evidence,” she says. 

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